6 Ga. App. 56 | Ga. Ct. App. | 1909
The questions in this case arise on a distress warrant sued out by Huff against Hearn. The affidavit for the warrant contained the statement by Huff that Hearn “is justly indebted to him in the sum of $22.50, for rent of lands in the county of Bibb, and that said rent is now due and unpaid.” Attached to this affidavit is a bill of particulars, stating that Hearn was indebted to Huff “for trespassing upon, using, and occupying and cultivating two lots of land in Vineville.” When the case was called for trial in the justice’s court, Huff amended by alleging that he brought the suit for the rent “as agent and for the use and benefit of the receiver of the Federal Court in the case of Bidwell et al. v. Huff et al.” Hearn filed a counter-affidavit. On the trial Fluff testified in substance as follows: The amount F claim is for using and occupying two lots of land, one for two years and a half, and one for three years. $27.50 is the reasonable rental value-of the land for that time. I never did rent the land to Mr. Hearn, or consent to his using or occupying it, but his doing so was without my consent, over my objection and protest. During all the time he occupied and used it, it was in the hands of a receiver of the United States court appointed in the ease of Bidwell et al v. Huff
The essential basis upon which the right to a distress warrant arises is the existence of the contractual relation of landlord and tenant. Such relation must exist either by express or by implied contract. Section 3116 of the Civil Code provides that “When title is shown in the plaintiff and occupation by the defendant, an obligation to pay rent is generally implied; but if the entry was not under the plaintiff, or if possession is adverse to him, no such implication arises.” The case of A., K. & N. Ry. Co. v. McHan, 110 Ga. 543 (35 S. E. 634), was an action for use and occupation of land of the plaintiff by the defendant, “without the consent of the plaintiff and without any authority whatever or right to the said use.” The court says: “Hnder the allegations of the petition, . . the railway company was a trespasser, pure and simple; and this being so, the plaintiff could not maintain against it an action for the use and occupation of the premises as upon an implied promise to pay rent.” And in Allen v. Macon & Dublin R. Co., 107 Ga. 849 (33 S. E. 700), the court says: “The relation